Construction Law/Construction/basis of design specs on government projects

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Expert: Gerry Sverdlin - 1/9/2013

QuestionHello,
I am a manufacturers representative working with two Architectural firms on a large government project which was bid as a design/Bid contract to the GC based on government "basis of design" specifications. Our materials meet all the requirements and have been specified on the job. The government entity involved, is not sold on the aesthetic being presented by the architects. In the meantime, a competitor has gone directly to the GC and submitted materials to be considered, none of which meet the basis of design requirements. My question is: Can the GC ignore the "Basis of Design" specs their contract is based on, in order to satisfy the end users aesthetically? My understanding has always been that on government projects, the "basis of design" has to be met first...........

From the statement of your question it appears that the type of the contract your client – the Architect / Engineer (“A/E” or “Design Professional” or “DP”) on a large government project – is involved in the Design-Build (“D-B”) project (the terminology “design/Bid’ is incorrect, unless it is Design-Bid-Build, or "D-B-B"). Under both types of procurement, the contract package usually contains technical specifications and design criteria, which indeed reflect the basis of design. When the government is the project Owner, the job is typically awarded to the lowest responsive and responsible bidder – the General Contractor (“GC”) who must build the job in accordance with the specifications.
The A/E usually can’t restrictively specify the product by name/product ID/model# alone, except in stating “or approved equal,” giving the A/E the latitude to determine that the product or material submitted by the GC, through Shop Drawing Submittals, is compliant to the requirements of the specifications in all respects.

GC does not have the latitude to unilaterally deviate from the Project Spec in any material way, except upon specific written approval of the A/E, lest the product be later found defective and be rejected upon inspection or tests of completion. In fact, on a typical material submittal form (Shop Drawing Submittal), the GC has to indicate (check mark) that:

a. GC verified all relevant specifications for this job, and that the submitted material is compliant with such requirements in every respect, or

b. If there is a known deviation from the requirements of the project, the GC has to indicate on the very same submittal form (Shop Drawing / Transmittal Cover Sheet, or any other agency-specific title) that there is a deviation from the project requirements, and the deviation is expressly brought up to attention of the A/E for its consideration whether or not the submitted Shop Drawing for product of material can be approved “as approved equal” substitute for this project notwithstanding the deviation.

In the process of such determination, the A/E weighs in all the functional and aesthetic properties of the product or material, determines its fitness for the requirements of the job, and stamps the GC’s Shop Drawing with a specific stamp showing that GC now has authority to proceed with procurement – construction - installation.

Sometimes even the diligent Contractor – GC here – fails to notice deviations in his proposed material or product and, consequently, checks the wrong box on the Shop Drawing Submittal form, indicating, as in a) above, he checked the material for compliance and found it fully compliant with the Project Spec. We are all humans subject to make innocent mistakes, after all. In such event, the A/E may miss the deviation and approve a non-compliant product. This is termed to be an “unknowing” approval, i.e. the A/E did not consider deviation or non-compliance of a product, because it was not expressly stated on the Shop drawing Submittal form. (That is how the Hyatt Regency disaster occurred. http://www.engineering.com/Library/ArticlesPage/tabid/85/ArticleID/175/Hyatt-Reg

If you have noticed that the material submitted by your competitor has failed to satisfy some functional specification of the Project Spec – i.e. wrongful or negligent approval by the A/E of a non-compliant material - you may want to bring the deviation to the attention of the A/E – sometime under formal protest and in writing - and have the A/E re-consider the prior approval, or fitness of that originally-approved material for the job, or intended purposes.

Sometimes, the A/E decides to waive some functional/structural requirements of the Spec for this material in favor of aesthetic value of the product - and CYA is not the only reason - on the basis of the low-bid or provisional price/allowance built into the project budget. If the deviation is deemed to be material enough, then the A/E may reject wrongfully-approved prior Shop Drawing submittal of that material /product and may instruct the GC to use other product, may even be yours, if you are persuasive enough. It is a judgment call within purview of the A/E’s authority.
I hope this answer is responsive to your inquiry.

Gerry Sverdlin

Expertise

Questions I can answer or provide assistance to reflect the following subjects: contract terms and conditions, interpretation of ambiguity, construction management and practices, claims for costs and time, variation / change orders, disputes, dispute resolution techniques and organizations, claims for extra work or materials, delay analysis, disruption or interference, defective design and negligent supervision, construction risks and mitigation, warranties and insurance.
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